More on DOMA

AG Holder’s memo explaining why Justice is declining to defend DOMA begins, “After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.” Later, Holder claims that the arguments in favor of the constitutionality of DOMA are not “reasonable.”

Orin has explained below why this assertion of executive power may be troubling, but I suspect that I am significantly less troubled than he is.

But I have a different bone to pick with the administration. According to news reports, while Justice will not defend DOMA in Court, the Administration will continue to enforce DOMA until it’s declared unconstitutional by the judiciary.

Wait a second! If the Executive Branch is asserting the authority to engage in independent constitutional review of an existing law, and the president decides that the law is unconstitutional, it strikes me that the Executive Branch has no business enforcing this unconstitutional law.

So I take the Obama Administration to task not for asserting executive review here, which is at least arguably proper, but for trying to split the baby in half, and declaring that it won’t defend an unconstitutional law, but will enforce it. And not just any unconstitutional law, but one regarding which the Administration claims there are no “reasonable” supporting arguments.